By Evarist Baimu Nyaga Mawalla - Home

have been taken into account, whether judgment has been made on a properself-disrection as to these facts, whether the judgment has not been made onother facts which ought not to have been taken into account. If thoserequirements are not met, then the exercise of judgment however hona fide itmay be, becomes capable of challenge’.And a similar view is taken by Lord Donning M.R. in the case of employmentSecretary Vrs. A.S.L.E.F (No. 2): 1972 2 Q B. 455 where the status said ‘if iteppeared to the Minister’ he could do certain things. Lord Donning M.R. at pp.492 – 3 said:‘ If it appear to the Secretary of State, this is my opinion does not mean that theMinister’s decision is public and challenge. The scope available to the challengerdepends very much on the subject matter with which the Minister is dealing . Inthis case I would think that if the Minister does not act in good faith or if he actson extrancous considerations ought not to influence or if he plainly misdirectshimself in fact or in law, it may well be that a court would interfere. But when hehonestly takes a view of the facts or the law which could reasonably heentertained, then his decision is noted be set side simply because thereaftersomeone thinks that his view was wrong.’The Privy Council as per Lord Salmon expressed their sentiments in more bitinglanguage in the case of Attonrey – General of St. Christopher, Nevis and AnguillaVrs. Reynolds: 1981 A.C. 637.Then it is said as p. 656:‘The Lordships consider that it is impossible that a regulation could beproperly construed as conferring dictatorial powers on the Governor and that iswhat the regulation would purport to do ‘ if the words’ if the Governor is satisfied’man ‘if the Governnor thinks that etc.’ No doubt Hitle thought that the measureseventhe most alrocious measures – which he took were necessary andjustifiable, but no reasonable man could think any such thing.The notion of a subjective or unfettered discretion is contrary to the Rule of Law.All power has legal limits and the rule of law demands that the courts should beable to axamine the exercise of discretionary power. If the discretion is notsubject to review by a court of law, then in our judgment, that discretion would bein actual fact as arbitrary as if the provisions themselves do not restrict thediscretion to any purpose and to suggest otherwise would in our view be naïve.Perhaps at this juncture I should remind all and sundry that the importance of therole of the courts in trammeling abuse of executive and administrative power ofthe government was fittingly put across by an eminent English judge LordDenning Mp.in the case of lake Airways Ltd. Vrs. Dept. of Trade. 1977 ) 2 AllJ.R 182 Where he said at pp. 194 – 195.457